Interpretation ID: nht91-7.53

DATE: December 23, 1991

FROM: Thomas A. Gerke -- Smith, Gill, Fisher & Butts

TO: Paul Jackson Rice -- Chief Counsel, NHTSA

COPYEE: Marc Iacovelli -- President, Rally Manufacturing, Inc.

TITLE: FMVSS No. 107, Reflecting Surfaces

ATTACHMT: Attached to letter dated February 3, 1992 from Paul Jackson Rice to Thomas A. Gerke, Esq. (A39; Std. 107; 108(a)(2)(A))

TEXT:

I am writing on behalf of Rally Manufacturing, Inc. ("Rally").

The purpose of this letter is to obtain confirmation of the National Highway Traffic Safety Administration's ("NHTSA") position with respect to Federal Motor Vehicle Safety Standard No. 107, Reflecting Surfaces. Specifically, Rally needs confirmation that FMVSS 107 does not apply to replacement windshield wiper arms and blades ("Wiper Blades") sold by a distributor/wholesaler to retail stores and other similar customers where the Wiper Blades are not installed by the distributor/wholesaler.

On May 14, 1991, Rally received a letter from NHTSA (NEF-31LLo IR 934 copy enclosed). After devoting significant management time to the matter and incurring substantial legal expenses, Rally was able to convince NHTSA that the position taken was contrary to applicable regulations and the positions taken by NHTSA in the record of various proposed rule making proceedings. IR 934 was closed. (See enclosed NHTSA letter dated August 7, 1991).

At the time of receipt of the May 14, 1991 letter, Rally discontinued the production of the products identified in the correspondence. Although the August 7, 1991 letter closed IR 934, Rally did not resume production. This has put Rally at a very significant competitive disadvantage and is resulting in the loss of sales, market share and shelf space to Rally's competition. Specifically, in reliance on your letter dated September 3, 1991, Rally's competitors (one of which is Custom Accessories, Inc.) have continued to offer a broad product line which includes products identical or very similar to the product discontinued by Rally. Again, this broader product line has put Rally at a competitive disadvantage and resulted in the loss of sales, market share and shelf space.

The situation has left Rally with no choice but to reintroduce the products in question in order to be able to offer a competitive product line. The difference between the positions taken in the May 14 letter to Rally and the September 3 letter to Custom Accessories, Inc. is the reason Rally seeks the requested written confirmation.

Your cooperation in immediately confirming to the undersigned on behalf of Rally that the NHTSA position is and continues to be (as set forth in your September 3 letter) that the sale of Wiper Blades by a wholesaler/distributor to retail stores and other similar customers without any installation service by the wholesaler/distributor is not (i) prohibited by FMVSS No. 107; (ii) a violation of Section 108 (a)(2)(A) of the National Traffic and Motor Vehicle Safety Act; or (iii) prohibited by any other applicable authority enforced by the NHTSA. Our telecopier number is 816-391-7600.

If there are any questions concerning the above or the requested letter, please telephone me immediately. Otherwise, thank you in advance for your prompt confirmation of NHTSA's position.